Respondents occasionally fail to enter an appearance or refuse to take part in certain aspects of a proceeding, especially the payment of deposits. The Dispute Resolution Service administers such claims as follows:
A. Notice of claim to respondent
If the Respondent fails to appear in the matter by establishing an account in the ECM (or by designating a representative to do so) the Claimant must serve the Respondent with notice of the proceedings by other means (see Rule 2.2). The Claimant, not the Administrator, must assess and comply with the service requirements of the jurisdiction in which the Claimant may ultimately seek to enforce an arbitration award.
B. Appointment of arbitrator
Once the Claimant represents to the Administrator that the Respondent has received adequate actual or attempted notice of the claim, the Administrator will provide a panel of candidates through the ECM for review and ranking. If the Respondent fails properly to respond, the Administrator will grant the Respondent five additional business days in which to submit rankings of the neutral candidates (see Rule 3.2(f)). If the Respondent fails to submit its rankings by this second deadline, the Administrator will appoint an Arbitrator or panel based upon the rankings it has received from the Claimant.
C. Arbitration proceedings
The Claimant should notify the Respondent of the pre-hearing conference, the evidentiary hearing, and any other communications between the Claimant and the Arbitrator. The Arbitrator may communicate ex parte with the Claimant if the Respondent has been notified of a pre-hearing conference or hearing but fails to participate (see Rule 4.2(c)).
D. Arbitrators’ fees
In commercial cases, if the Claimant wants the claim to move forward despite the Respondent’s refusal to pay its share of the deposit, the Claimant must deposit the full amount requested to meet the Arbitrator’s anticipated fees and expenses. The final award may take into account the Respondent’s failure to share the costs of arbitration with the Claimant (see Rules 5.3(b) and 7.6(b)(2)).
In consumer cases and certain employment cases, the health care entity or employer may be responsible for paying all of the forum costs for arbitration and may be subject to default judgment for failure to pay. See Rules of Procedure for Consumer Arbitration, Rule 5.3(c); Rules of Procedure for Employment Arbitration, Rules 7.6(c) and 5.3(c). If the health care entity or employer deposits insufficient funds to allow for the appointment of an arbitrator, then AHLA may appoint an attorney on staff as the Arbitrator to enter default judgment pursuant to Consumer or Employment Rule 5.3(c) if the record supports such a ruling. Similarly, if an arbitrator accepts an appointment but withdraws because insufficient funds are deposited to pay for his or her service, then AHLA may appoint an attorney on staff as the replacement Arbitrator to enter default judgment pursuant to Consumer or Employment Rule 5.3(c) if the record supports such a ruling.
E. Award in respondent’s absence
Except as is provided in Rule 5.3(c) of the consumer and employment rules, the Arbitrator may not issue a default judgment; a final award must be based on evidence presented at a hearing (see Rule 7.2). To keep costs down and to avoid unnecessary delays, the hearing may be conducted by telephone. If no witness testimony is required, evidence may be established by the submission of documents.
F. Respondent’s delayed appearance
A Respondent may enter its appearance at any time up to the close of the hearing. However, the Respondent is not entitled to have any determinations made prior to its appearance reversed or reconsidered unless the Claimant failed to provide the Respondent with adequate actual or attempted notice of the proceeding. For example, if the Administrator has already appointed an Arbitrator or a panel, the Administrator need not withdraw the appointment and repeat the appointment process. Similarly, if the Arbitrator has conducted a pre-hearing conference and issued a pre-hearing order, the Arbitrator need not modify this order.